KARACHI: The Sindh High Court (SHC) has dismissed seven special customs reference applications filed by Collector of Customs challenging impugned order released by customs appellate tribunal in favor of M/s Great Eastern Trading Co, M/s Yasir Enterprises, M/s Kamran Lubricants (Pvt) Ltd and others.
On 16 April 2021, a two-member bench, comprising Justice Muhammad Junaid Ghaffar and Justice Agha Faisal released detailed verdict.
Through these Reference Applications the Applicant has impugned an order dated 11.12.2010, passed by the Customs Appellate Tribunal, Karachi Bench-III in Customs Appeal No. K-779 of 2010, and in all connected matters.
Learned counsel for the applicant has read out the order of the tribunal as well as the show cause notice and the order-in-original and submits that respondents had made an attempt to import diesel oil under the garb of “Residue of Petroleum” and according to him this was their continuous practice earlier as well. Hence, the impugned order is liable to be set-aside and the order of the original authority be restored
On the other hand, learned Counsel for the respondents submits that it is a matter of record that the respondents have never claimed ownership of the goods, as noted in the Order-in-Original, whereas, in earlier proceedings to which reference has been made, the FIR was quashed under Section 265-K Cr.P.C.
After the arguments of both sides, court observed that perusal of record placed before us reflects that admittedly no goods declarations was ever filed by the respondents, and the entire case as set up in the show cause notice / contravention report is on the examination of the goods as well as the information available by way of Import General Manifest and the purported Bill of Ladings available with the Applicant.
The precise case of the applicant appears to be that in terms of section 2 (kka) of the Customs Act 1969, a bill of lading has been defined, and therefore it is a customs document pursuant to which proceedings under Section 32 ibid can be initiated. However, it needs to be appreciated that though a Bill of Lading is a customs document as defined under Section 2 (kka) ibid; but it only matters and is relevant when the same has been annexed or filed along with a goods declaration required to be filed under Section 79 of the Act.
It will only then become a customs document of the importer in terms of s.2 (kka) ibid; and if there is any discrepancy in the said document including a Bill of Lading viz-a-viz with the actual goods so imported; only then it would be treated as a document and a case of an alleged mis-declaration under Section 32 of the Act can be made out. Insofar as instant matter is concerned, the said Bill of Lading has never been owned by the respondents; nor based on it, any Goods Declaration has been filed; nor SCRA 468 to 474 of 2011 Page 5 of 5 has even ownership of the goods in question been claimed.
In that case merely by conducting examination of goods and getting them tested through laboratory, no case can be initiated or made out against the present respondents for imposition of penalty who have never come up as to the claim of the goods in-question. Moreover, adjudicating authority was also completely mis-directed by placing reliance on clearance of some earlier consignments allegedly done in the same manner.
The said goods were not part of the show cause notice in hand; hence, to that extent the Order-in-Original could not even be maintained. The learned Tribunal has correctly appreciated the law as well as facts and the order of the Tribunal, whereby the penalty imposed has been remitted, does not require any interference by us.
In fact in the given circumstances there appears to be no substantial question of law which could arise from the order of the Tribunal; hence need not require any adjudication by us. Accordingly, all these Reference Applications being misconceived are hereby dismissed”.
